First Amendment Scholarship Update

Newly available papers on topics related to the First Amendment include: 

1) Richard M. Esenberg (Visiting Assistant Professor of Law, Marquette University Law School), Of Speeches and Sermons: Worship in Limited Purpose Public Forums, forthcoming in Mississippi Law Journal, Forthcoming. The abstract states:

Recent decisions of the United States Supreme Court have held that governments who create limited purpose public forums may not exclude even "quintessentially religious" speech that is otherwise within the purpose of the forum. Nevertheless, governments frequently attempt to exclude religious speech that might be characterized as "worship" from such forums and the Ninth Circuit Court of Appeals, in conflict with the Second and, arguably, Seventh Circuits has upheld such exclusion.

The article addresses whether worship can be regarded as a separate category of speech that may be constitutionally excluded from limited purpose public forums. To assess the idea that worship is "different," it briefly assesses mainstream Christian theology concerning worship and concludes that worship is likely to communicate ideas about life in the world that are within the boundaries of most broadly defined public forums. Exclusion of such speech would be inconsistent with the Court's insistence upon neutrality between religion and irreligion and is unnecessary to avoid the risk or appearance of establishing religion.

2) Matt Halling (Student, UC Hastings College of Law), Did Press Freedom Win a Medal? The Future of Foreign Journalism in China.The abstract states:

This paper addresses the future of foreign journalism in China in the wake of the new liberalizing press regulations created for the 2008 Olympics which were made permanent in October, 2008. Despite hope for a more open foreign press in China, the paper argues that the new regulations as applied have largely institutionalized the existing reality.

Part I discusses human rights instruments relevant to freedom of the press in order to determine whether China's current regulations facially comport with international human rights law. Part II of this paper discusses China's historical treatment of foreign journalists and analyzes the substance of the new regulations. Part III looks at how the Chinese government applied the new regulations to foreign reporters at the Olympics. Part IV evaluates the new regulations and engages briefly with the issue that China's press regulations still do not satisfy the demands of Western journalists.

3) David Abramowicz (Student, Columbia Law School), Note - Calculating the Public Interest in Protecting Journalists' Confidential Sources. The abstract states:

Most federal circuits recognize a qualified journalist’s privilege not to identify a confidential source. In shielding journalists from some subpoenas, those courts recognize, at least implicitly, a public interest in newsgathering sufficient to overcome its interest in obtaining evidence. But courts pay little attention to the nature or scope of the newsgathering interest. They treat it as fixed, an approach that overlooks the reality that certain uses of confidential sources benefit the public more than others. Some judges and commentators have called for a flexible approach toward measuring the newsgathering interest, but their proposals, which rely on an analysis of the value of a confidential source’s information, would yield unpredictable results. These proposals have not gained traction.

This Note identifies, for the first time, a procedural analysis, based on guidelines recently championed by journalists and media organizations, that can be used to calculate the newsgathering interest. The new guidelines govern the process by which journalists obtain and report information from confidential sources. The Note argues that courts should afford more or less weight to the newsgathering interest based on whether a journalist’s use of information from a confidential source adhered to the guidelines. This approach would align the journalist’s privilege with the public interest without requiring a subjective assessment of information’s news value. Furthermore, focusing the relevant inquiry on the process by which information flowed from a confidential source to the public would solve the problem of defining who is a “journalist” entitled to invoke the privilege.

4) James David Nelson (University of Virginia School of Law), Incarceration, Accommodation, and Strict Scrutiny. The abstract states:

The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires the application of strict scrutiny to policies substantially burdening the religious exercise of prisoners. Although RLUIPA was passed without dissent, critics and commentators have tended to accept three skeptical claims about the use of strict scrutiny in this context: (1) changes in the formal level of scrutiny applicable to claims for religious accommodation are irrelevant to case outcomes; (2) even the most sympathetic statutory language will not improve prisoners' chances of success in seeking accommodations; (3) using the language of strict scrutiny in prison cases will diminish its force in other areas of the law. This paper challenges these skeptical conclusions. Since RLUIPA was passed in 2000, federal courts have reviewed hundreds of claims brought by prisoners seeking accommodations. Some federal circuit courts have continued to defer to the judgment of prison administrators when denying exemptions. Other federal courts, however, are employing a more rigorous form of review, taking a "hard look" at prison policies that burden religion, and reviewing carefully the claims of prison administrators. Moreover, rather than diluting strict scrutiny in other areas of the law, these courts are using doctrine from outside of the accommodation context to resolve prisoner claims. The emergence of a searching form of review in the prison context is surprising. After detailing an emerging conflict among the federal courts of appeal, this paper argues that firm constitutional footing, statutory specificity, and the importation of searching review from equal protection and free speech cases all help to explain this unexpected development. This paper concludes with some thoughts about how proponents of religious accommodation should proceed in light of the limited but real success of RLUIPA.

5) M. D. R. Evans and Jonathan Kelley  (University of Nevada, Reno - Departments of Resource Economics and Sociology and International Survey Center), Traditional Lifestyles Protect Against Parental Divorce: Effects of Religion, Ethnicity, Rurality and Mother's Employment in Australia in the 20th Century, forthcoming in International Journal of Sociology of the Family.The abstract states:

This paper examines the sources of parental divorce in Australia using respondents' retrospective reports of their parents' behavior, which allows us to look back as far as the early years of the 20th century. The data are from a pooled series of representative national samples of Australia conducted between 1984 and 2002 (N=19,601 valid cases for this analysis), which we analyze using probit regression models. Replicating prior research, we find that rural parents and Mediterranean immigrant parents have more stable marriages. Taking into account further traditionalism measures - church attendance and maternal employment - substantially expands our knowledge and changes our understanding of the already established effects. Parents who are faithful church-goers have much more stable marriages, even net of many other influences. By contrast, religious denomination does not have significant effects, nor do education, occupation, or income. Maternal employment increases the risk of divorce. It also reduces the previously established rurality effect to insignificance, suggesting that it merely reflects lower maternal employment in the countryside. By contrast, the protective effect of Mediterranean origins is actually amplified after adjustment for maternal employment. The effect of maternal employment declined strongly over time, with important implications for understanding the causal direction of the relationship. Even after taking our expanded range of influences into account, there are still substantial effects unmeasured variables represented by a time trend toward increasing divorce.

JFB